F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

MAY 4 2000

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 99-4219
(District of Utah)
(D.C. No. 97-CV-917-B)

v.
JOSE LEON-MUNOZ,
Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRORBY, KELLY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*

This case is before the court on Jose Leon-Munozs pro se request for a
certificate of appealability (COA). 1 Leon-Munoz seeks a COA so that he can
appeal the district courts denial of his 28 U.S.C. 2255 petition. See 28 U.S.C.
2253(c)(1)(B) (providing that a petitioner cannot appeal the denial of a 2255
petition unless he first obtains a COA). Because Leon-Munoz has not made a
substantial showing of the denial of a constitutional right, as required by
28 U.S.C. 2253(c)(2), this court denies his request for a COA and dismisses
this appeal.
Leon-Munoz pleaded guilty to illegal reentry in violation of 8 U.S.C.
1326(a) and was sentenced to a term of seventy-seven months in a federal
correctional facility. Rather than filing a direct appeal, Leon-Munoz filed the
instant 2255 petition. In his petition, Leon-Munoz asserted that his attorney had
been ineffective in the following two respects: (1) failing to request a downward
departure on the basis of a stipulated voluntary deportation and waiver of any
right to a hearing in connection with the deportation process; and (2) failing to

The district court did not rule on Leon-Munozs request for a COA. Under
this courts Emergency General Order of October 1, 1996, we deem the district
courts failure to issue a COA within thirty days after filing of the notice of
appeal as a denial of the certificate. See United States v. Riddick, 104 F.3d 1239,
1241 n.2 (10th Cir.), overruled on other grounds by United States v. Kunzman,
125 F.3d 1363, 1364 n.2 (10th Cir.1997), cert. denied, 523 U.S. 1053 (1998).
1

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request an additional one-point downward adjustment in the base offense level for
acceptance of responsibility under U.S.S.G. 3E1.1(b). In addition to his two
ineffective assistance of counsel claims, Leon-Munoz also asserted that he was
improperly sentenced pursuant to 8 U.S.C. 1326(b)(2) because the government
had failed to allege 1326(b)s prior felony element in the indictment.
Leon-Munozs 2255 petition was referred to a magistrate judge for initial
proceedings pursuant to 28 U.S.C. 636(b)(1)(B). In a thorough report and
recommendation (R & R), the magistrate judge recommended that LeonMunozs petition be denied. The magistrate judge began his analysis by noting
that to prevail on his ineffective assistance claim, Leon-Munoz must satisfy the
two-part test set forth by the Supreme Court in Strickland v. Washington, 466
U.S. 668, 686 (1984) (holding that in order to prevail on an ineffective assistance
claim, a petitioner must show: (1) that counsels performance was deficient; and
(2) that the deficient performance prejudiced the defense to the extent of altering
the outcome). As to Leon-Munozs claim relating to the downward adjustment
for acceptance of responsibility, the district court noted that despite his assertions
to the contrary, Leon-Munoz had actually received the full three-point adjustment.
Accordingly, he failed to meet either prong of Strickland. As to the claim that
counsel was ineffective for failing to request a downward departure based on a
stipulation for voluntary deportation, the district court noted as follows: (1) there
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was no showing in the record that Leon-Munoz had ever entered into such a
stipulation or expressed a desire to do so; (2) the United States Attorneys office
in Utah did not have a practice of entering into such stipulations and there was
nothing in the record to indicate the district court would have granted a departure
absent such an stipulation; and (3) case law and revisions in the practices of the
Attorney General seriously called into question the propriety of a downward
departure on these grounds. Having resolved the ineffective assistance claims,
the magistrate judge went on to note that Leon-Munozs claim that he was
improperly sentenced under 1326(b) because his prior felony was not set out in
the indictment was precluded by the Supreme Courts decision in AlmendarezTorres v. United States, 118 S. Ct. 1219, 1223-33 (1998) (holding that
1326(b)(2) is a penalty provision, rather than a separate substantive crime, and
that the government does not, therefore, have to charge the fact of an earlier
conviction in the indictment). Over Leon-Munozs objections, the district court
adopted the R & R after conducting a de novo review.
Leon-Munoz is entitled to a COA only upon making a substantial showing
of the denial of a constitutional right. See 28 U.S.C. 2253(c)(1)(B). He can
make such a showing by demonstrating that the issues he seeks to raise are
deserving of further proceedings, debatable among jurists of reason, or subject to
different resolution on appeal. See Barefoot v. Estelle, 463 U.S. 880, 893 (1983);
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see also Slack v. McDanial, No. 98-6322, 2000 WL 478879, at *7 (U.S. Apr. 26,
2000) ([W]e give the language found in 2253(c) the meaning ascribed it in
Barefoot, with due note for the substitution of the word constitutional.); id.
(Where a district court has rejected the constitutional claims on the merits, the
showing required to satisfy 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district courts assessment of
the constitutional claims debatable or wrong.). A close review of Leon-Munozs
request for a COA and appellate brief, the R & R, and the entire record on appeal
demonstrates that Leon-Munoz cannot make any of the necessary showings.
Accordingly, this court DENIES Leon-Munozs request for a COA for
substantially those reasons set out in the R & R dated August 18, 1999. This
appeal is therefore DISMISSED.
ENTERED FOR THE COURT:

Michael R. Murphy
Circuit Judge

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